NRF asks judge to reject proposed swipe fee settlement

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Washington -- Lawyers representing the National Retail Federation and many of the nation’s most prominent retail companies are set to appear in court today to ask a federal judge to reject a proposed class-action settlement of an antitrust lawsuit over the $30 billion a year in credit card swipe fees charged by Visa and MasterCard.

“This proposal benefits no one but lawyers and credit card companies, and should not be forced on the retail industry or retailers’ customers,” NRF senior VP and general counsel Mallory Duncan said. “It’s a morass of legal flaws, and rather than bringing about reform it would only entrench the anticompetitive behavior of the card companies while putting them beyond the reach of the law. It should be rejected on its face.”

A hearing on a motion for preliminary approval of the proposed settlement is scheduled for 11:30 a.m. before U.S. District Court Judge John Gleeson in Brooklyn, N.Y. Gleeson will hear arguments on a brief filed last week by NRF, 17 retail and restaurant companies and two other trade associations. NRF is not a party to the lawsuit, but its members and the companies named in the brief would be affected if the case is approved as a class action. Arguments will also be heard on briefs filed by other opponents, including retailers and associations who were parties to the suit but who have rejected the proposal.

NRF argued in its brief that the settlement cannot legally be certified as a class action because it attempts to force a one-size-fits-all solution onto a wildly diverse group of merchants. It also argued that a provision barring all retailers – including those who opt out of the settlement and even those who do not yet exist – from filing future lawsuits over swipe fees is impermissibly broad under federal law.

In addition, the proposal allows retailers to reject payments offered as compensation for past price-fixing but gives no mechanism to opt out of flawed injunctive relief that would allow card companies to continuing price fixing and fee increases in the future.

NRF opposes the settlement because it fails to reform the cartel-like system where Visa and MasterCard set a rigid schedule of swipe fees that all banks follow. It does nothing to disclose the hidden fees or otherwise create transparency that would encourage competition that would lead to lower fees. Merchant bargaining groups could be recognized, but that is no change from current law. And while some merchants would theoretically be given the right to surcharge as a bargaining chip to hold down fees, the provision is subject to a wide variety of card company restrictions, would be illegal in 10 states, and ignores the goal of merchants to reduce prices paid by their customers.